1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND CAPITAL EDGE ADVOCACY, INC.
This Agreement is made and entered into as of December 7, 2023 by and between the City of San Bernardino, a charter city and muni cipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, C A 92401 (“City”), and Capital Edge Advocacy Inc., a Corporation with its principal place of business at 1212 New York Ave., NW Suite 250, Washington, DC 20005 (hereinafter referred to as “Consultant”). City and Consultant are hereinafter sometimes referred to in dividually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of Californ ia and is in need of professional services for the following project:
Identify federal funding opportunities, legislation , or regulations that might support or impact the City of San Bernardino and community pri orities and programs. (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessar y qualifications to provide such services.
C. The Parties desire by this Agreement to establis h the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City wit h the services described in the Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional servic es to be provided by Consultant pursuant to this Agreement shall be prov ided by personnel identified in their proposal. Consultant warrants that Consultant is f amiliar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “A.” 2 b. In no event shall the total amount paid for serv ices rendered by Consultant under this Agreement exceed the sum of $90,000 . This amount is to cover all related costs, and the City will not pay any additi onal fees for printing expenses.
Consultant may submit invoices to City for approval . Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction.
City shall pay Consultant’s invoice within forty-fi ve (45) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional ser vices approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other par ty indicate that a change is warranted, it shall be processed in the following manner: a l etter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services , or the City will not be required to pay for the changes in the scope of work. Such ame ndment shall not render ineffective or invalidate unaffected portions of this Agreement.
a. Adjustments. No retroactive price adjustments will be considered.
Additionally, no price increases will be permitted during the first year of this Agreement, unless agreed to by City and Consultant in writing.
6. Term. This Agreement shall commence on the Effe ctive Date and continue through December 7, 2024, unless the Agreement is p reviously terminated as provided for herein (“Term”).
7. Maintenance of Records; Audits.
a. Records of Consultant’s services relating to thi s Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date.
b. Books, documents, papers, accounting records, an d other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
8. Time of Performance. Consultant shall perform i ts services in a prompt and timely manner and shall commence performance upon r eceipt of written notice from the City to proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circu mstances beyond the reasonable 3 control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Eve nt shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for t he services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, eme rgency proclamations and orders, rules to protect the public health, welfare and safety. b. Should a Force Majeure Event occur, the non-perf orming Party shall, within a reasonable time of being prevented from pe rforming, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Ag reement. Delays shall not entitle Consultant to any additional compensation regardles s of the Party responsible for the delay.
c. Notwithstanding the foregoing, the City may stil l terminate this Agreement in accordance with the termination provisions of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws , ordinances, codes and regulations of the federal, state and local gov ernment, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, a s requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant’s services will b e performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Consultant’s performance shall conform in all material
12. Conflicts of Interest. During the term of thi s Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciar y duty to the City and shall not accept payment from or employment with any person or entit y which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of t his Agreement a valid business 4 registration certificate from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses, permits, qualifications , insurance, and approvals of whatever nature that are legally required of Consultant to p ractice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or inte rest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent assoc iates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No empl oyee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such d irections and amendments from City as herein provided. Any personnel performing the w ork governed by this Agreement on behalf of Consultant shall at all times be under Co nsultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Agr eement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow a ny subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
The City of San Bernardino, its officials, officers , employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automo bile liability insurance using the endorsements and forms specified herein or exact equivalents. b. Commercial General Liability
(i) The Consultant shall take out and maintain, dur ing the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form a nd with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insu rance shall be at least as broad as the following:
5 Insurance Services Office Commercial General Liabil ity coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must i nclude coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Cont ract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or pr ovisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and app ointed officials, officers, employees, agents, and City-designated vo lunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 3 7 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize eith er deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, n on-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance sh all be at least as broad as Insurance Services Office Form Number C A 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. 6 (iv) Subject to written approval by the City, the a utomobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of th e provisions of Section 3700 of the California Labor Code which req uires every employer to be insured against liability for workers’ compensation or to u ndertake self-insurance in accordance with the provisions of that code, and he/she will c omply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compe nsation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Co nsultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. e. Professional Liability (Errors and Omissions)
At all times during the performance of the work und er this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with i nsurance companies acceptable to the City and in an amount indicated herein. This insur ance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against a cts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The p olicy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. f. Privacy/Network Security (Cyber)
At all times during the performance of the work un der this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and the (4) introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to the City.
g. Aviation and/or Drone Liability N/A
7 h. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurre nce/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence f or bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and
aggregate
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits c ontained in this section are not intended as a limitation on coverag e, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
i. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers c ertifying to the coverage of all insurance required herein. Such evidence shall inc lude original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insur er’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. j. Policy Provisions Required
(i) Consultant shall provide the City at least thir ty (30) days prior written notice of cancellation of any policy requir ed by this Agreement, except that the Consultant shall provide at least ten (10) days pri or written notice of cancellation of any 8 such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreem ent, the Consultant shall deliver renewal certificate(s) including the General Liabil ity Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Au tomobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other cov erage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consult ant shall maintain such coverage continuously for a period of at least three years a fter the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effect ive date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for t he professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, ag ents, and volunteers or shall specifically allow Consultant or others providing insurance evid ence in compliance with these specifications to waive their right of recovery pri or to a loss. Consultant hereby waives its own right of recovery against City and shall re quire similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separat ely to each insured against whom claims are made or suits are b rought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverag e, nor shall it limit the Consultant’s indemnification obligations to the City and shall n ot preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. k. Qualifying Insurers
(i) All policies required shall be issued by accept able insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or
companies with a current A.M. Best's rating of no l ess than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
l Additional Insurance Provisions
9 (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in an y manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreemen t, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but n ot the duty to obtain the insurance it deems necessary and any premium paid by City will b e promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provid e complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, e mployees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. m. Subconsultant Insurance Requirements. Consultan t shall not allow any subcontractors or subconsultants to commence wo rk on any subcontract until they have provided evidence satisfactory to the City tha t they have secured all insurance required under this section. Policies of commercia l general liability insurance provided by such subcontractors or subconsultants shall be e ndorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City ma y approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Indemnification .
a. To the fullest extent permitted by law, Consulta nt shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, a nd authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decr ees, settlements, loss, damage or injury of any kind, in law or equity, to property o r persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agr eement, including without limitation the payment of all damages, expert witness fees, attorneys’ fees and other related costs and expenses. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's ob ligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, the City Council, members of the City Council, its employees, or authorized volunteers. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement. 10 b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to the extent which the Claims ari se out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the services or this Agreement, and, upon Consultan t obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liabi lity for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
18. California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “mainten ance” projects. If the Services are being performed as part of an applicable “public wo rks” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agr ees to fully comply with such Prevailing Wage Laws, if applicable. Consultant sh all defend, indemnify and hold the City, its elected officials, officers, employees an d agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California La bor Code provisions, which include but are not limited to prevailing wages (Labor Code Sec tions 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Lab or Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an a pplicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such S ervices must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsu ltants, as applicable. This Project may also be subject to compliance monitoring and en forcement by the Department of Industrial Relations. It shall be Consultant’s sol e responsibility to comply with all applicable registration and labor compliance requirements.
19. Verification of Employment Eligibility. By exe cuting this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub- subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interp reted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
11 21. Termination or Abandonment
a. City has the right to terminate or abandon any p ortion or all of the work under this Agreement by giving ten (10) calendar days’ written notice to Consultant.
In such event, City shall be immediately given titl e and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendere d for any portion of the work completed prior to termination. If said terminatio n occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified her ein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provi de further services under this Agreement upon thirty (30) calendar days ’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
22. Attorneys’ Fees. In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
23. Responsibility for Errors. Consultant shall b e responsible for its work and results under this Agreement. Consultant, when req uested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s prof essional services occurs, Consultant shall, at no cost to City, provide all other servic es necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not e mploy any current employee of City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs an d fees incurred in the preparation and negotiation of this Agreement and i n the performance of its obligations hereunder except as expressly provided herein.
26. Documents. Except as otherwise provided in “Te rmination or Abandonment,” above, all original field notes, writ ten reports, Drawings and 12 Specifications and other documents, produced or dev eloped for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
27. Organization. Consultant shall assign Chris Giglio as Project Manager.
The Project Manager shall not be removed from the P roject or reassigned without the prior written consent of the City.
28. Limitation of Agreement. This Agreement is lim ited to and includes only the work included in the Project described above.
29. Notice. Any notice or instrument required to b e given or delivered by this Agreement may be given or delivered by depositing t he same in any United States Post Office, certified mail, return receipt requested, p ostage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Manager
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Capital Edge Advocacy, Inc.
1212 New York Ave, NW, Suite 250
Washington, DC 20005
ATTN: Christopher F. Giglio
30. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant repre sents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, na tional origin, ancestry, sex, age or other interests protected by the State or Federal C onstitutions. Such non-discrimination shall include, but not be limited to, all activitie s related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including Ex hibit “A,” represents the entire understanding of City and Consultant as to t hose matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those m atters covered hereunder. Each Party acknowledges that no representations, inducem ents, promises, or agreements have been made by any person which are not incorpor ated herein, and that any other agreements shall be void. This is an integrated Agreement. 13 33. Severability. If any provision of this Agreeme nt is determined by a court of competent jurisdiction to be invalid, illegal, or u nenforceable for any reason, such determination shall not affect the validity or enfo rceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall b e binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consulta nt shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted a ssignment without such consent shall be invalid and void.
35. Non-Waiver. The delay or failure of either Par ty at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance.
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the P arty against whom enforcement of a waiver is sought. The waiver of any right or remed y with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
36. Time of Essence. Time is of the essence for ea ch and every provision of this Agreement.
37. Headings. Paragraphs and subparagraph heading s contained in this Agreement are included solely for convenience and a re not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. City’s Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Ag reement. Further, Consultant warrants that it has not paid nor has it agreed to pay any c ompany or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this wa rranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present o r anticipated material benefit arising therefrom.
14 41. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an orig inal. All counterparts shall be construed together and shall constitute one single Agreement.
42. Authority. The persons executing this Agreeme nt on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto ar e formally bound to the provisions of this Agreement.
43. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
44. Disciplinary Actions in Phases for Non-Performa nce. Failure for Consultant to perform its obligations under this Agreement or comply with the Performance Indicators may result in disciplinary action as follows:
(i) Informal Warning (Written or Verbal). Consult ant is given a warning in regards to non-performance. If a verbal warning is issued, it will be confirmed with an electronic correspondence to the Consultant.
(ii) Formal Written Warning. A formal written war ning is issued to Consultant pursuant to Section 29 of this Agreement. Consultant must respond within 5 to 10 days of receipt of the formal warning. Upo n response from the Consultant, Consultant shall be provided a reasonable time to make corrections to their performance.
This time period
(iii) Formal Penalty Issued. A penalty of 15% of the Consultant’s current invoice amount or annual contract amount is deducted for non-performance after previous warnings have been issued.
(iv) Termination of Contract. If the performance has not been corrected after all warnings and previous penalties have been exhausted, City may terminate the contract pursuant to Section 21 of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND CAPITAL EDGE ADVOCACY, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY :
Charles A. Montoya
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM :
Best Best & Krieger LLP
City Attorney
CAPITAL EDGE ADVOCACY, INC.
Signature
Name
Title
16 EXHIBIT A
SCOPE OF SERVICES
1. Capital Edge Advocacy Inc. would assist the City of San Bernardino in identifying, in a timely manner, federal funding opportunities, legislation, or regulations that might support or impact the City of San Bernardino and community priorities and programs.
2. This would include competitive grant programs an d other funding opportunities at federal agencies and include background on program priorities that may help guide any City decision to apply.
3. Capital Edge Advocacy Inc. would also provide gu idance with any process related to requests for Member Designated Projects (“earmarks”) that may occur in Congress through the annual appropriations process or reauthorization bills such as those reauthorizing federal transportation or water resources programs.
4. Capital Edge Advocacy Inc. would provide backgro und and information on federal funding opportunities for the 2021 Infrastructure Investment and Jobs Act and 2022 Inflation Reduction Act in areas such as transportation, broadband, water resources or cybersecurity.
5. Capital Edge Advocacy Inc. would assist the City of San Bernardino with the process of seeking support for City applications or requests from the City’s congressional delegation and informing the delegation of positions taken by the City on federal legislation.
6. This would include assisting in arranging and pr eparing for meetings and interactions with federal officials and developing supportive materials such as letters, talking points, or any other follow-up as needed through the City Manager’s Office.
7. Capital Edge Advocacy Inc. would provide this as sistance through frequent contact with City of San Bernardino staff and any other designated officials at appropriate times, mostly via email and telephone, and would be available to City of San Bernardino officials with questions about federal legislation or programs through the City Manager’s Office or their Designee.
8. Capital Edge Advocacy Inc. would advise the City of San Bernardino on federal priorities and potential legislative developments that may impact City of San Bernardino priorities, policies, resources or revenues.
9. Capital Edge Advocacy Inc. would also send the C ity of San Bernardino the Washington Report , which we send by email each week that Congress is in session 17 and includes news from Congress as well as grant opportunities and notices from the Executive Branch that are pertinent to local governments.
COST STRUCTURE
Capital Edge Advocacy Inc. proposes an annual compensation level of $90,000.00 for services described in the Scope, payable in twelve monthly installments of $7,500.00.
This retainer would serve as the only vehicle for compensation, and we do not propose any hourly rates above this amount for our services.